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Thursday, May 9, 2013

Patients get first win over hip maker

The New Zealand Herald

London claim over faulty replacements to proceed to trial after challenge withdrawn.

Some victims have made a successful recovery but others have been left with serious disabilities needing expensive care after losing their ability to work. Photo / Dean Purcell

More than 100 New Zealanders suffering from faulty hip replacements have won the first battle in a lengthy court case in London.

DePuy, a subsidiary of medical giant Johnson & Johnson which manufactured ASR metal implants, yesterday withdrew a challenge to the New Zealand claim.

The group is claiming damages for personal injury and financial losses in an English court against DePuy - which manufactured the metal-on-metal implants in Leeds - because it is unable to sue in New Zealand due to the "no fault" ACC legislation.

Most patients have had surgery to replace the failed cobalt and chrome metal hip and a few have had multiple operations. Some victims have made a successful recovery but others have been left with serious disabilities needing expensive care after losing their ability to work.

At first, DePuy objected to the New Zealand claim on jurisdictional grounds and a group of four test cases were to test this issue in court.However, the English High Court dismissed the jurisdictional challenge in respect and there can be no appeal because of DePuy's decision to abandon its challenge prior to the hearing - after the claimants, including a group from South Africa, had produced their evidence.

The case can now proceed to trial.

Hugh Preston, QC, an English barrister who specialises in product liability and personal injury, said his New Zealand clients had consistently argued that they were entitled to bring their claim in England.

"The claimants will argue that the hip implants supplied to them were unsafe."

John Miller, a Wellington lawyer acting for the group in New Zealand, said the abandoned challenge was a "significant step forward for these injured claimants".

"Many of whom do not believe ACC and the New Zealand taxpayer should be responsible for subsidising what they see to be the responsibility of a multinational company."

The ASR hip was recalled in August 2010 when the rate of failure after six years reached 12 per cent compared to the normal 4 per cent. The failure rate in Britain has since been reported to be 49 per cent and Mr Preston said some experts are predicting all will fail by 10 years.